The Neutral Mediator – What Neutrality Means and What it Entails

Dorcas Crawford

Edwards & Co

In the second of a series of four videos on workplace mediation, Scott Alexander, Head of Learning & Development at Legal-Island, interviews mediator Dorcas Crawford about the importance of neutrality in mediation. Other videos focus on:

Transcript

Neutrality and payment of the mediator

Scott: Neutrality is important in mediation – the mediator has to be viewed as neutral by both parties or it will not work. How can you convince both parties of your neutrality when one party (usually the employer) pays the mediator’s fees?

Dorcas: Well, two things. Sometimes the mediation is between two employees who work for the employer. Obviously it's not the same suspicion there, but it's a good question because I have been asked a number of times where the employer has brought me in and has paid me or is paying me to do the mediation and quite rightly, I have had a number of times where the employee then feels perhaps there's a disadvantage there because am I going to be inclined to try and push them towards a solution that suits the employer because they're the paymaster.

What I've done in those situations in the past, is I've asked the employee to meet with me or talk to me on the phone before they even engage in the mediation, and that's not something I charge for. That often puts their mind at rest. A couple of things. First of all, I explain to them that obviously my reputation as a mediator is totally based on my neutrality and I wouldn't be as successful mediator if people had raised concerns about my neutrality.

I share my CV with them. My CV records a lot of feedback from other parties. I get them to look at The Better Way website which is also based on neutrality. But generally, what really does it is the conversation. So I'll maybe have an hour-long conversation on the phone or a half hour conversation, just to reassure people and to tell them why my neutrality is so crucial.

The other thing that I do when the parties eventually meet and when I bring them together to actually conduct the mediation, is that I also sign up to the mediation agreement. The parties sign and I sign it and that includes clauses about my neutrality. I think that in my experience, my signing up to it as well as them helps them to understand that I'm part of that process and that I'm bound by the terms which include my neutrality. It's about reassurance really.

Balancing needs and managing expectations

Scott: You get them into the mediation and then you've got to manage the process in a neutral manner. So I'm there, I'm an employee, as you can tell I'm inarticulate. How do you balance that if you've got somebody who is much more capable or able than somebody else, without it appearing that you're favouring me and if I've got difficulties in communicating?

Dorcas: Again, you raise a very good point because it is something that parties feel anxious about. I do spend a lot of time at the beginning of mediation. I spend a very brief time with the parties together, unless for some reason things are so bad that they can't be in the same room, which occasionally happens. The main thing I start the mediation with is spending a good hour, if not an hour and a half with each party separately.

They may both be in the same building on the same day or I may see them on two separate days completely separately. What I do during that hour, hour and a half initially, is just listen. I ask some open questions to get them to really come out of their shell and confide in me and tell me a lot. That session is really about building trust. Sometimes employers get a bit frustrated when I say my first session is not going to do much other than listen. You can see them think, "Why am I paying you to listen?" But those first sessions are so crucial to how the process then goes because that's about building trust with the parties. It's during those sessions, Scott, that really I start to listen and understand and if there is a bit of mistrust or a bit of anxiety or a bit of anger or emotion, those are the sessions privately where that tends to come out.

Scott: So you've managed the expectations before you go in.

Dorcas: Yes.

Scott: So if they see you react in a certain way, they know that you're just managing the process and not taking sides.

Controlling emotions and non-verbal communication

Dorcas: That's exactly right. It also is very important to practice your neutrality. I have to be honest and say there are times mediations when somebody has disclosed something to me and I have really wanted, I felt my jaw drop, I'm so shocked and I mentally have to do this. So there is a bit of practice goes on in terms of not showing any surprise, any shock, because that immediately impacts on how the party sees you. And so you do have to work very hard at the neutrality and there are times naturally where we either naturally incline toward somebody, we like their personality or we dislike their personality.

And part of that practice as a mediator is to go off somewhere private. Sometimes it's a lift in a building, sometimes it's the loo, sometimes it's somewhere else and I have to put my neutral face on because I'm human as well. I have to manage my own behaviour.

Scott: Your body language shows.

Dorcas: Absolutely, and there's a bit of practice goes into that.

Our next video focusses on the role of the parties involved in a mediation.

More on Workplace Mediation

Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.